Citation Nr: 9817299
Decision Date: 06/04/98 Archive Date: 06/15/98
DOCKET NO. 94-01 840 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Des Moines, Iowa
THE ISSUES
1. Whether new and material evidence has been submitted
sufficient to reopen a claim of service connection for
arthritis of the lumbar and thoracic spine.
2. Entitlement to an increased (compensable) rating for
residuals of a shell fragment wound to the upper lumbar
region, including a residual scar.
3. Entitlement to an increased (compensable) rating for
residuals of a shell fragment wound to the left shoulder,
including a residual scar at the T-1 level.
4. Entitlement to a compensable rating for multiple
noncompensable service-connected disabilities under 38 C.F.R.
§ 3.324.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
David A. Brenningmeyer, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1943 to
December 1945. He was awarded, among other things, the
Purple Heart Medal.
By a decision entered in January 1984, the Board of Veterans’
Appeals (Board) granted service connection for a small scar
over the veteran’s upper lumbar region. In its decision, the
Board took note of his allegation that he had sustained a
shell fragment wound in the area of his back and/or shoulder
in service, service department records which indicated that
he had been hospitalized in service after being wounded in
action, and the report of a VA examination which reflected
that a small scar over the upper lumbar region had been
identified on clinical evaluation in May 1981. Resolving
reasonable doubt in his favor, service connection for the
scar was granted. Service connection was not granted,
however, for other residuals claimed by the veteran, such as
back strain, arthritis, or other trauma-related disorders.
In March 1984, the RO implemented the Board’s grant of
service connection for the scar of the upper lumbar region,
and assigned a zero percent (noncompensable) evaluation
therefor. The RO concluded that the scar itself was
noncompensably disabling, and noted that the VA physician who
examined the veteran in December 1979 had been unable to
identify any disability associated with a shell fragment
wound. The RO noted that the physician had opined that all
of the veteran’s problems with his neck, shoulder, and back
were associated with his combined degenerative and gouty
arthritis. A statement, dated in March 1985, was thereafter
received from the veteran’s private physician, Dr. Kane, and
the RO confirmed the prior zero percent evaluation by a
decision entered in August 1985. Neither the March 1984 nor
the August 1985 decision was appealed within one year and, as
a result, those decisions became final. 38 C.F.R. § 19.129
(1983); 38 C.F.R. § 19.129 (1985).
In December 1988, the RO, among other things, denied service
connection for arthritis. The veteran did not appeal that
decision within one year, and it likewise became final.
38 C.F.R. § 19.129 (1988). Subsequently, by decisions
entered in October 1991 and March 1992, the RO reaffirmed the
prior zero percent evaluation for residuals of a shell
fragment wound to the upper lumbar region, and denied his
petition to reopen a claim of entitlement to service
connection for arthritis of the spine. He initiated an
appeal as to those claims and, while the appeal was still
pending, the RO issued a decision in August 1993 granting
service connection for residuals of a shell fragment wound to
the left shoulder (a scar at the T-1 level) and assigning a
zero percent evaluation therefor. The RO also denied
entitlement to a compensable rating for multiple
noncompensable service-connected disabilities under 38 C.F.R.
§ 3.324. A supplemental statement of the case (SSOC) was
issued in August 1993, including as an issue on appeal
entitlement to compensation benefits under 38 C.F.R. § 3.324,
and the veteran submitted written argument as to that
additional issue within 60 days. 38 C.F.R. §§ 20.202,
20.302(c) (1993). The case was thereafter transferred to the
Board in January 1994.
In May 1996, the Board remanded the case back to the RO for
further development. The RO completed the development as
requested and, in May 1997, issued the veteran another SSOC.
The SSOC included as an issue on appeal the matter of his
entitlement to an increased (compensable) rating for
residuals of a shell fragment wound to the left shoulder (a
scar at the T-1 level), and he submitted written argument as
to that additional issue within 60 days. 38 C.F.R.
§§ 20.202, 20.302(c) (1996). The case was transferred back
to the Board in July 1997.
The Board notes that, in July 1996, the veteran submitted to
VA several VA Forms 21-4142 (JF) (“Authorization and Consent
to Release Information to the Department of Veterans Affairs
(VA)”). In one of those forms, referencing treatment
received from his private physician, Dr. Kane, he raised the
issue of his entitlement to service connection for defective
hearing and tinnitus. Those claims have not yet been
adjudicated by the RO in the first instance, and are
therefore referred to the RO for appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he suffers from residuals of in-
service injuries to his back and left shoulder, including
scars and arthritis, and contends that the zero percent
evaluation currently assigned for such residuals does not
adequately reflect the severity of his disability. He says
that he was digging a foxhole in August 1944 when the force
of a shell blast threw him down, injuring his back. He says
that a piece of shrapnel penetrated his left shoulder, and
that he was taken to a field hospital where a bandage was
placed over the wound. He maintains that currently shown
arthritis in his lumbar and thoracic spine can be attributed
to his injuries in service, and contends that he experiences
pain and tenderness in the vicinity of his service-related
scars. He says that he has had problems with his back and
left shoulder since service, and that he has been told by
physicians that his current problems could be related to in-
service injury.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that new and material evidence
has not been submitted sufficient to reopen his claim of
entitlement to service connection for arthritis of the lumbar
and thoracic spine. It is also the decision of the Board
that the preponderance of the evidence is against his claims
for increased (compensable) ratings for residuals of shell
fragment wounds to his upper lumbar region and left shoulder,
and for disability compensation benefits under the provisions
of 38 C.F.R. § 3.324.
FINDINGS OF FACT
1. VA previously denied the veteran’s claim of entitlement
to service connection for arthritis in December 1988, and he
did not appeal that decision. Evidence since received does
not raise a reasonable possibility of changing the outcome of
that decision.
2. The wound to the veteran’s upper lumbar region is
manifested only by an asymptomatic scar at the L-3 level.
The scar is well-healed, superficial, and nontender to
palpation. There is no evidence of ulceration or irritation,
and the scar is not shown to be causative of any limitation
of function.
3. The wound to the veteran’s left shoulder is manifested
only by an asymptomatic scar at the T-1 level. The scar is
superficial and non-tender, and is not shown to be causative
of any limitation of function.
4. The veteran’s service-connected disabilities are not of
such character as clearly to interfere with normal
employability.
CONCLUSIONS OF LAW
1. No new and material evidence has been received sufficient
to warrant reopening of the veteran’s claim of entitlement to
service connection for arthritis of the lumbar and thoracic
spine. 38 U.S.C.A. §§ 1110, 1154, 5108, 7104, 7105 (West
1991 & Supp. 1997); 38 C.F.R. §§ 3.156, 3.303, 3.304, 20.200,
20.201, 20.202, 20.302, 20.1100, 20.1103 (1997).
2. The criteria for a compensable rating, for residuals of a
wound to the veteran’s upper lumbar region (a scar at the L-3
level), have not been met. 38 U.S.C.A. §§ 1155, 5107 (West
1991); 38 C.F.R. § 4.118, Diagnostic Codes 7803-7805 (1997).
3. The criteria for a compensable rating, for residuals of a
wound to the veteran’s left shoulder (a scar at the T-1
level), have not been met. 38 U.S.C.A. §§ 1155, 5107 (West
1991); 38 C.F.R. § 4.118, Diagnostic Codes 7803-7805 (1997).
4. The assignment of a compensable rating for multiple
noncompensable service-connected disabilities is not
warranted. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 3.324
(1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
A. Arthritis
Service connection for arthritis was denied by a decision
entered in December 1988. The veteran did not appeal that
decision and, as a result, it became final. See 38 U.S.C.A.
§ 7105 (West 1991); 38 C.F.R. §§ 20.200, 20.201, 20.202,
20.302, 20.1103 (1997). Consequently, his current claim of
entitlement to service connection for arthritis of the spine
may be considered on the merits only if new and material
evidence has been submitted since the time of the December
1988 decision. 38 U.S.C.A. §§ 5108, 7104, 7105 (West 1991 &
Supp. 1997); Manio v. Derwinski, 1 Vet.App. 140, 145 (1991);
Evans v. Brown, 9 Vet.App. 273 (1996).
The Board must consider the question of whether new and
material evidence has been submitted because it goes to the
Board’s jurisdiction to reach the underlying claim and
adjudicate the claim de novo. See Barnett v. Brown, 83 F.3d
1380, 1383 (Fed. Cir. 1996). If the Board finds that no such
evidence has been offered, that is where the analysis must
end, and what the RO may have determined in that regard is
irrelevant. Id. Further analysis beyond consideration of
whether the evidence submitted in the effort to reopen is new
and material is neither required nor permitted. Id. at 1384.
See also Butler v. Brown, 9 Vet.App. 167, 171 (1996).
Evidence is considered “new” if it was not of record at the
time of the last final disallowance of the claim and if it is
not merely cumulative of other evidence that was then of
record. Struck v. Brown, 9 Vet.App. 145, 151 (1996);
Blackburn v. Brown, 8 Vet.App. 97, 102 (1995); Cox v. Brown,
5 Vet.App. 95, 98 (1993); Colvin v. Derwinski, 1 Vet.App.
171, 174 (1991). “Material” evidence is evidence which
tends to prove the merits of the claim as to each essential
element that was a specified basis for the last final
disallowance and which creates a reasonable possibility that,
when viewed in the context of all the evidence, both new and
old, it would change the outcome of the prior adjudication.
See Evans, 9 Vet.App. at 282-85; Cox and Colvin, supra. In
determining whether evidence is new and material, the
“credibility of the evidence is to be presumed.” Justus v.
Principi, 3 Vet.App. 510, 513 (1992).
The evidence available at the time of the December 1988
adjudication included records which showed that the veteran
was treated in service for a penetrating wound to the
shoulder in August 1944. The causative agent of the wound
was listed as “Artillery Shell, Fragments, Afoot or
unspecified.” The claims folder contained a copy of a
telegram sent to his wife in August 1944, informing her that
he had been “slightly wounded” in action in France, and
discharge papers from the service department showed that he
had been awarded the Purple Heart Medal.
Post-service records, including VA records, records from
Boone County Hospital, and reports from several private
physicians (Drs. Kane, Josephson, Zaentz, and Luthra), dated
from 1979 to 1985, showed that the veteran complained of
chronic neck and back pain and that he was diagnosed with,
among other things, gout and arthritis of the spine. The
medical records, including correspondence from his
physicians, contained several notations reflecting the
veteran’s assertion that his problems with his back and
shoulder were due to a shrapnel wound in service, but his
theories of causation were not independently endorsed by his
care providers in the available reports. Indeed, one VA
physician who examined the veteran in December 1979 indicated
in a January 1980 addendum to his report that no disability
associated with a fragment wound could then be identified,
and that all of the veteran’s problems with his neck,
shoulder, and back were associated with his combined
degenerative and gouty arthritis. It was on the basis of
this evidence that his former claim was denied.
Several additional pieces of evidence have been received
since the time of the December 1988 decision. This evidence
includes copies of letters from the veteran to his wife,
dated in 1945; records from the Social Security
Administration (including records and letters from Dr.
Zaentz, Mary Greeley Memorial Hospital, and the McFarland
Clinic, dated from 1978 to 1983; records from the Harding
Medical Clinic, dated in 1979; additional records from Dr.
Zane, also dated in 1979; and records from Dr. Luthra and the
Mayo Clinic, dated in 1993); an insurance form from Bankers
Life and Casualty Co.; letters and records from the veteran’s
chiropractor, B. Baldwin, dated in 1979, 1995, and 1997; the
transcript of a hearing held at the RO before the undersigned
Member of the Board in October 1993; and VA examination
reports and treatment records, dated from 1991 to 1996.
Duplicate copies of documents already of record in December
1988 have been also received. These include copies of
service department morning reports, copies of documents
already received from the surgeon general’s office, and
duplicate records and correspondence from Drs. Kane,
Josephson, and Luthra.
Some of this additional evidence is “new” in the sense that
the cited materials were not available at the time of the
December 1988 decision, and contain facts that were not then
known. However, none of the “new” evidence is “material”
because none of it is sufficiently probative of the issue of
service connection so as to give rise to a reasonable
possibility of changing the outcome of the prior
adjudication. This is so because, although the veteran
maintains that his problems associated with arthritis of the
lumbar and thoracic spine are due to the wounds he sustained
in service in August 1944, neither the new nor the old
evidence of record contains any competent medical opinion
which affirmatively indicates that his current difficulties
with arthritis can be attributed to events in service.
The Board does not question that the veteran sustained wounds
to his back and left shoulder during service. The available
records clearly show that he was wounded in action in August
1944, and the injuries he has described are consistent with
the circumstances, conditions, and hardships of his service.
38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d)
(1997). The problem here is that no competent evidence has
been submitted which indicates that there is a medical
relationship, or nexus, between the injuries he sustained in
service and arthritis of the spine diagnosed many years
later. See, e.g., Turpen v. Gober, 10 Vet. App. 536, 538-39
(1997) (affirming the Board’s denial of a veteran’s petition
to reopen under circumstances where the veteran had not
submitted any medical evidence of nexus between current
arthritis and service, and reiterating that the presumption
afforded under 38 U.S.C.A. § 1154(b) does not abrogate the
medical nexus requirement to establish service connection).
While the veteran has repeatedly offered his opinion as to
the etiological origin of his arthritic problems, and his
theories in that regard have often been transcribed into
medical records, no evidence has been submitted to show that
he has the medical expertise necessary to offer competent
opinions on matters relating to medical causation.
Furthermore, as to the medical records reiterating his
statements and theories relating to causation, the Board
notes that a bare transcription of lay history or other
information recorded by a medical examiner, unenhanced by any
additional medical comment, does not constitute “competent
medical evidence” sufficient to reopen a claim. Cf. LeShore
v. Brown, 8 Vet. App. 406, 409 (1995). See also Elkins v.
Brown, 5 Vet. App. 474, 478 (1993) (medical opinion was not
“material” where there was no indication that the physician
formed the opinion on a basis separate from appellant’s
recitation of his medical and service background).
Of all the evidence received since the time of the December
1988 adjudication, only one medical report—the report of a
VA examination conducted in June 1996—contains a direct and
competent statement as to the etiology of the veteran’s
complaints. Therein, following a review of the claims
folder, the examiner stated, “I cannot make any connection
of the reported war wound with the degenerative changes in
the spine.” Given that opinion, and the lack of a
cognizable opinion tending to negate or contradict it, the
Board cannot find that the evidence submitted since December
1988 raises a reasonable possibility of changing the outcome
of the prior adjudication.
The Board notes that VA has a duty to notify claimants of the
evidence necessary to complete their applications for
benefits where their applications are incomplete.
38 U.S.C.A. § 5103(a) (West 1991). The United States Court
of Veterans Appeals (Court) has held that this duty includes
a duty to notify claimants of the need to provide certain
evidence where the claimant has made statements indicating
the existence of such evidence that would, if true, make the
claim plausible. See Robinette v. Brown, 8 Vet.App. 69, 77-
80 (1995). The Court has held that this duty attaches
whether the application is for an original claim of benefits
or whether it is an application to reopen a prior final
decision. Graves v. Brown, 8 Vet.App. 522 (1996).
In the present case, the record reflects that the veteran has
on several occasions indicated that he has been told by
physicians that his current problems with his back and
shoulder could be related to the injuries he sustained in
service. Under 38 U.S.C.A. § 5103(a) and Graves, this
statement triggered VA’s duty to inform him of the need to
submit documentary evidence of such opinions in order to
“complete” his application to reopen. The RO fulfilled
that duty when, pursuant to the Board’s May 1996 remand, it
issued a notice to him specifically informing him that he
should submit statements from his physicians indicating the
existence of a medical relationship between his arthritis and
his military service. No such evidence has since been
received, however, and the veteran’s statements with regard
to what he was told by a physician are simply too attenuated
and inherently unreliable to constitute medical evidence
sufficient to reopen the claim. Graves, 8 Vet. App. at 524.
Absent the presentation of new and material evidence, the
Board does not have jurisdiction to review the former
disposition. Butler v. Brown, 9 Vet.App. 167 (1996). The
petition to reopen is therefore denied.
B. Scars
The veteran is seeking increased (compensable) ratings for
residuals of shell fragment wounds to his left shoulder and
upper lumbar region. To date, the only manifestations
recognized by VA as residuals of those wounds are two scars;
one at the L-3 level and another at the T-1 level. His
claims for increased (compensable) ratings for those two
scars are well-grounded, 38 U.S.C.A. § 5107 (West 1991), and
all of the available evidence pertinent to their evaluation
has been obtained for review. He has been examined for
rating purposes, and was given an opportunity to present
testimony during a Travel Board hearing held at the RO in
October 1993. Consequently, the Board finds that no further
assistance is required to comply with the duty to assist.
38 C.F.R. § 3.159 (1997).
Disability evaluations are determined by the application of a
schedule of ratings, which is in turn based on the average
impairment of earning capacity caused by a given disability.
38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1997).
Separate diagnostic codes identify the evaluations to be
assigned to the various disabilities.
Non-disfiguring scars, other than burn scars, are evaluated
in accordance with the criteria set forth in 38 C.F.R.
§ 4.118, Diagnostic Codes 7803-7805 (1997). A superficial
scar which is poorly nourished and subject to repeated
ulceration warrants a 10 percent rating. A 10 percent rating
is also warranted for superficial scars that are tender and
painful on objective demonstration. Compensation may also be
warranted where the scar results in limitation of function.
Id.
In the present case, the evidence shows that the scars in
question are completely asymptomatic. When the veteran was
examined for compensation purposes in June 1996, it was noted
that he had a scar on his back at the L-3 level. The
examiner indicated that the scar was well-healed,
superficial, and nontender to palpation. There was no
evidence of ulceration or irritation and, with regard to the
scar’s affect on function, the examiner opined that he did
not believe that the scar(s) had any relationship to the
veteran’s present symptoms and impairment. Although no scar
at the T-1 level was found at the time of the June 1996
examination, a scar in the T-1 region was identified on prior
VA examination in July 1993 (it was then noted to be
“inconspicuous” and “barely visible”). The report of that
examination shows that that scar was similarly superficial,
nontender, and asymptomatic.
In view of the foregoing, it is the Board’s conclusion that
the preponderance of the evidence is against the veteran’s
claims for increase. Although the veteran has complained
that his service-connected scars are tender and painful, they
have not been shown to be tender and painful on objective
demonstration. Indeed, it appears from the medical evidence
that the discomfort he describes is due not to his service-
connected scars per se, but rather to underlying problems
with arthritis. As noted above, his arthritis is not
service-connected. In the absence of any evidence showing
that his scars are tender and painful on objective
demonstration, poorly nourished with repeated ulceration, or
otherwise causative of limitation of function, a compensable
rating is not warranted. 38 C.F.R. § 4.118, Diagnostic Codes
7803-7805 (1997).
The Board has considered whether referral is warranted for
consideration of extraschedular evaluations for the veteran’s
service-connected scars, and has concluded that it is not.
As noted above, the scars are asymptomatic. None of the
evidence shows that they are causative of marked interference
with employment, that they have resulted in frequent periods
of hospitalization, or that any other circumstances exist
which would warrant consideration of an extraschedular
rating. 38 C.F.R. § 3.321(b)(1) (1997). As the
preponderance of the evidence is against the claim for
increase, the claim must be denied.
C. 38 C.F.R. § 3.324
Under certain circumstances, VA regulations allow a
compensable rating to be awarded to a veteran where he has
multiple service-connected disabilities, and none of those
disabilities is compensably disabling under the VA disability
rating schedule. The regulations provide that:
Whenever a veteran is suffering from two or
more separate permanent service-connected
disabilities of such character as clearly to
interfere with normal employability, even
though none of the disabilities may be of
compensable degree under the 1945 Schedule
for Rating Disabilities [,] the rating agency
is authorized to apply a 10-percent rating,
but not in combination with any other rating.
38 C.F.R. § 3.324 (1997).
Under the facts here presented, the Board finds that the
preponderance of the evidence is against the assignment of a
10-percent rating under 38 C.F.R. § 3.324. The veteran’s
service-connected disabilities are limited to two scars; one
at the L-3 level and another at the T-1 level. Both scars,
as noted above, have been described by examiners as being
completely asymptomatic. While the veteran has underlying
problems with his spine, such as arthritis, those
difficulties have not been adjudicated service-connected. In
the absence of evidence demonstrating some degree of
symptomatology associated with the service-connected scars,
it cannot properly be said that the scars are of “such
character as clearly to interfere with normal employability .
. . .” The claim for a compensable rating for multiple
noncompensable service-connected disabilities must therefore
be denied.
ORDER
The petition to reopen a claim of entitlement to service
connection for arthritis of the lumbar and thoracic spine is
denied.
The claims for increased (compensable) ratings for residuals
of wounds to the veteran’s left shoulder and upper lumbar
region are also denied.
The claim of entitlement to a compensable rating for multiple
noncompensable service-connected disabilities under 38 C.F.R.
§ 3.324 is likewise denied.
M. CHEEK
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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